White House Makes Little Gain in Resolving Whitewater Fight

By STEPHEN LABATON

Published: December 20, 1995

WASHINGTON, Dec. 19—
Hoping to avoid a constitutional showdown on the floor of the Senate, President Clinton's lawyers today asked the Whitewater independent counsel and other investigators to agree that if the White House turned over notes to the Senate Whitewater committee, the investigators would not regard the move as a waiver of the President's lawyer-client privilege.

For weeks, the White House has defied the Senate committee's subpoenas for the notes, which involve a 1993 meeting on Whitewater among senior aides and lawyers of Mr. Clinton. In recent days, however, White House lawyers have said the President would turn over the notes if he received acknowledgment from investigators that they would not consider the step a precedent in which Mr. Clinton waived his right to keep Whitewater conversations with his lawyers confidential.

Today the White House approached the independent counsel's office, as well as Federal regulators who are also examining Whitewater, to offer the proposal. At day's end, however, White House aides said they had received no reply.

But there was a response from the chairman of the House Banking and Financial Services Committee, but it was not a favorable one. The chairman, Representative Jim Leach of Iowa, whose committee has also held hearings on Whitewater, said in a letter to Speaker Newt Gingrich that accepting an arrangement worked out by the White House and the Senate would set a bad precedent for the House as to how it should go about conducting its own inquiries.

The majority Republicans on the Senate committee had already acknowledged that a surrendering of the notes would not constitute a waiver of the lawyer-client privilege, since, they contend, the notes are not protected by the privilege in the first place. But that still left the other investigators, the request to whom today came only a day before the full Senate is to consider whether to seek a court order to enforce the committee's subpoenas.

The White House maintains that in the absence of the agreement sought from the investigators, the courts could ultimately decide that a surrendering of the notes amounted to Mr. Clinton's waiving his ability to keep private any Whitewater discussions he has already had with his lawyers, or might have in the future.

The notes are of a two-hour meeting that took place on Nov. 5, 1993, at the Washington law firm of Williams & Connolly, which has represented the President and his wife, Hillary, throughout the Whitewater investigations. The notes were taken by William H. Kennedy 3d, then an associate White House counsel, who has since returned to practicing law at the Rose firm in Little Rock, Ark.

Other participants at the meeting were three White House officials (Bruce Lindsey, Bernard W. Nussbaum, and Neil Eggleston) and three lawyers who have worked on the personal and financial interests of the Clintons (David E. Kendall, James Lyons and Stephen Engstrom).

The meeting took place just as two sensitive investigations bearing on the Clintons were finding their way to the White House, and Republicans say the notes could provide insight into whether White House officials improperly provided confidential information about the inquiries to help the Clintons' personal lawyers prepare the First Family's legal defense.